U.S. v. Robertson, 80-1991

• Citation: 659 F.2d 652
• Decision Date: 21 October 1981
• Docket Number: No. 80-1991,80-1991
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rebecca Lynn ROBERTSON, Defendant-Appellant. . Unit A *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 652

659 F.2d 652

UNITED STATES of America, Plaintiff-Appellee, v. Rebecca Lynn ROBERTSON, Defendant-Appellant.

No. 80-1991.

United States Court of Appeals Fifth Circuit.

Unit A ^*

Oct. 21, 1981.

Charles S. Szekely, Jr., Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for defendant-appellant.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before CHARLES CLARK, TATE and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

On August 28, 1979, a grand jury in Brownsville, Texas returned a three-count indictment against defendant Rebecca Lynn Robertson and two co-defendants. The first count of the indictment charged defendant with conspiracy to possess marijuana with intent to distribute it in violation of 21 U.S.C.A. §§ 841(a)(1) and 846. The second count charged defendant with possession of marijuana with intent to distribute it in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2. The third count charged defendant with using a communications facility during the commission of a felony in violation of 21 U.S.C.A. § 843(b) and 18 U.S.C.A. § 2.

Defendant was arraigned and pled not guilty to all three counts. After a trial by jury, the district court granted defendant's motion for a judgment of acquittal as to count three of the indictment. The jury found defendant not guilty of count two. However, the jury found defendant guilty of count one, the conspiracy charge, and defendant was sentenced under the Youth Corrections Act to five years probation with supervision.

Defendant appeals her conviction, claiming there is insufficient evidence to support the jury's finding. She also claims the district court erred in its manner of charging the jury. We affirm defendant's conviction.

I. Facts

When reviewing a record to determine whether sufficient evidence exists to uphold the jury's verdict, we must view all the evidence in the light most favorable to the Government, accepting all reasonable inferences and credibility choices tending to support the jury's verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Marx, 635 F.2d 436, 438 (5th Cir. 1981). "We can reverse only if we conclude that a reasonable jury could not find the evidence inconsistent with all reasonable hypotheses of the defendant's innocence." United States v. Molina-Garcia, 634 F.2d 217, 218-19 (5th Cir. 1981). The facts viewed in the light most favorable to the government demonstrate defendant was guilty of conspiracy to possess marijuana with intent to distribute it.

A. Knowledge of the Conspiracy

Co-defendant Randy Mitchum, the Government's principle witness, began transporting marijuana from the Rio Grande Valley of Texas to Conroe, Texas a town approximately forty miles north of Houston several months preceding his arrest and the arrest of defendant Rebecca Lynn Robertson. ¹ Mitchum worked for a man named Nick Gonzalez, defendant's step-father. Gonzalez' home in Conroe was the apparent headquarters of a significant marijuana distribution scheme.

Defendant's participation in the conspiracy first began on Friday, August 10, 1980. On this Friday, Nick Gonzalez, Mitchum, and defendant discussed an upcoming trip to the Valley for the purpose of obtaining marijuana. Gonzalez told those present including defendant Rebecca Lynn Robertson that they were going to the Valley in order to obtain the second half of a load of marijuana. Defendant was told the first half already had been brought to Conroe and it was "sin semilla," which means the marijuana was seedless or Grade A.

It apparently was during this conversation that the parties discussed the mechanical aspects of the trip to the Valley. The second half of the marijuana load was to be transported in a blue Ford camper pickup, which would be driven by Mitchum. Defendant and co-defendant Andrea Sue Robertson would occupy a second car, a black 1979 Firebird. The Firebird would serve as a "scout" car. It would drive ahead of the pickup in order to assure the illegal activity would not be detected. Both vehicles were equipped with citizen band radios to facilitate communication between the scout car and the pickup.

B. The Trip to the Valley

The caravan left the Houston area late in the evening of Saturday, August 11. The pickup truck was occupied by Mitchum and the younger half brother of defendant, Randy Hooker. The scout car was occupied by co-defendant Andrea Robertson, defendant's four-year old sister, defendant's twelve-month old daughter, and defendant herself. The record indicates defendant voluntarily assumed her position in the passenger side of the car's front seat, she knew the car was intended to serve as a scout car, and she knew the sole and express purpose of the trip to the Valley was to obtain marijuana for distribution in the Houston area.

After arriving in Brownsville, Texas, the six-member group checked into a motel. Co-defendants Mitchum and Andrea Robertson then left in order to make contact with the supplier of the marijuana, leaving defendant at the motel with Randy Hooker and the two small children. After failing to make contact with their source, Andrea Robertson and Mitchum returned to the motel and the group checked out, later checking into a second motel.

Once again, Andrea and Mitchum left the motel to make contact with their source. As before, defendant was left at the motel room with her younger half brother and the two small children. On this occasion, Andrea and Mitchum made contact with their source and transacted their business.

After the pickup truck was loaded with marijuana on Sunday morning, the return trip to Conroe was discussed. Defendant was present throughout the discussion. It was decided the convoy would utilize Farm to Market Road 1017, traveling north through the LaGloria checkpoint. This decision was made because the LaGloria checkpoint, as opposed to the checkpoints on the other possible routes to Conroe, usually was not open. In addition, since the C.B. radios were not operating, it was decided the scout car, which was to be occupied again by Andrea, the two children, and defendant, would drive through the checkpoint to see if it was open. If it was not open, the car was to continue on its trip to Conroe. If it was open, the scout car was to return and warn the truck loaded with marijuana, which would be trailing eight or nine miles behind.

As the convoy left the motel on its way to Conroe, the record indicates defendant voluntarily assumed her position in the scout car. She knew the pickup truck was loaded with marijuana and would be following. She also knew the car in which she was riding was to serve as a mechanism for determining whether it was safe to transport the marijuana to Conroe.

The LaGloria checkpoint happened to be open the day of the return trip to Conroe August 12, 1979. The record indicates the scout car containing defendant reached the checkpoint, drove a few miles down the road, turned around, and began returning to warn the passengers of the pickup truck. However, the pickup truck arrived at the checkpoint before the scout car had time to return. The Border Patrol searched the pickup and found the marijuana.

While the Border Patrol was dealing with the pickup truck loaded with marijuana and its passengers, the scout car returned to the checkpoint. Of course, this time it was heading south. The Firebird stopped, although automobiles heading south are not required to do so, and the occupants began explaining why they were returning. The record indicates defendant, together with her sister, told the Border Patrol that defendant had left her billfold in LaGloria. While explaining that defendant's identification had been lost, defendant rummaged through her purse as though she in fact had lost something.

After acting out this facade, Andrea and defendant proceeded through the checkpoint, returning once again after approximately ten minutes. Because the distance from the checkpoint to the City of LaGloria would preclude a mere ten minute trip, the Border Patrol became suspicious about the Firebird. The car was detained while the Border Patrol checked its registration, and it was identified as a stolen vehicle. The occupants of the car were held while Drug Enforcement Administration officials were summoned.

In response to questioning, defendant told the DEA agent in charge of the case she did not know the occupants of the pickup in which Mitchum and her half brother Randy Hooker had been riding. The fact is defendant knew her brother and had known Mitchum for several years. She also repeated the story about her lost identification, and told the officers she had retrieved it. Investigation revealed the store in which she claimed she had something to eat or drink was actually closed. In addition, the officer's investigation revealed that the outdoors area in which she claims she relieved herself by going to the bathroom was quite open and exposed to view. In fact, it was visible to anyone who might be in one of two separate houses and anyone who would have been in the store if it had been open.

In addition to telling the officer she did not know her half brother or Mitchum and the fabricated story about losing her identification, defendant provided false information regarding her employment, her married name, and her phone number. She also told a fabricated story about her purpose for being in the Firebird. Defendant told the DEA officer she had gone to Harlingen, Texas to visit some friends of her sister Andrea. However, she was unable to relate the names or address of these people. Additionally, the record indicates that if in fact defendant were proceeding from Harlingen to Conroe, she had chosen to take the longest route available.

Sixteen days after the incident at the checkpoint, ...